Jackie Hardin v. State of Tennessee ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 13, 2011
JACKIE HARDIN v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Knox County
No. 95037 Jon Kerry Blackwood, Judge
No. E2011-00567-CCA-R3-PC - Filed March 12, 2012
Petitioner, Jackie Hardin, appeals the denial of post-conviction relief from her aggravated
assault conviction, claiming she was denied effective assistance of counsel. Petitioner
alleges that trial counsel failed to call important witnesses, did not allow her to testify, and
failed to conduct discovery. Finding no error, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
R OGER A. P AGE, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J. and
J OHN E VERETT W ILLIAMS, J., joined.
Mart S. Cizek, Clinton, Tennessee (on appeal) and Russell Greene, Knoxville, Tennessee (at
trial) for the petitioner, Jackie Hardin.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Randall Eugene Nichols, District Attorney General; Kenneth F. Irvine, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Procedural History
A Knox County Grand Jury returned an indictment against petitioner, charging her
with three counts of aggravated assault. A jury convicted petitioner of one count of
aggravated assault and two counts of the lesser-included offense of assault. The trial court
merged the assault convictions with the aggravated assault conviction and sentenced
petitioner to thirteen years as a Range II persistent offender. On appeal, this court affirmed
the jury verdict, but remanded the case to the trial court with instructions to enter an order
reflecting that the two assault convictions merged with the aggravated assault conviction.
Petitioner did not seek second tier appellate review.
Petitioner filed a timely petition for post-conviction relief on June 10, 2010. The court
held a hearing on February 18, 2011, and issued a written opinion denying the petition on
March 10, 2011. This appeal follows.
II. Facts from the Trial
In the direct appeal from the trial of this case, a panel of this court recited the
following facts established at trial:
Brittany Hurst testified that she was fourteen years old at the time of the
offense. On August 25, 2004, she, along with her mother, Melissa Hurst
Murray, and two young cousins, drove to a local fast food restaurant for dinner
between 6:00 p.m. and 6:30 p.m. Ms. Murray pulled into the line at the
drive-through window. Ms. Hurst said that she saw a blue Toyota Camry in
line ahead of her family and recognized Brittany Miller and Jonathan Smith as
the occupants of the vehicle. Ms. Hurst said that she attended the same middle
school as Ms. Miller, and that she had known Mr. Smith for a few months. Ms.
Hurst and Ms. Miller had had a dispute earlier that day at school. Ms. Hurst
and Ms. Miller signed a “contract” stating that the two young women would
not engage in any future altercations.
Ms. Hurst said that her mother got out of the vehicle to talk to Ms. Miller
about the incident at school, but Ms. Miller and Mr. Smith drove off before
Ms. Murray reached their vehicle. Ms. Murray returned to her own vehicle,
and the group proceeded through the drive-through line.
Ms. Hurst said that when they reached the window to pay for their order, the
blue Camry entered the restaurant’s parking lot through the exit lane and
pulled up to the passenger side of Ms. Murray’s vehicle where Ms. Hurst was
sitting. Ms. Hurst said that John Hardin, Defendant’s husband, was driving the
Camry, Defendant was in the front passenger seat, Ms. Miller was sitting in the
back seat behind Mr. Hardin, and Mr. Smith was sitting behind Defendant. Mr.
Smith got out of the Camry and began to yell profanities and jumped up and
down. Mr. Smith approached Ms. Miller’s open car window and slapped her.
Ms. Hurst said that Mr. Smith then struck her in the face with his fist.
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Ms. Hurst attempted to hit Mr. Smith and eventually hit him in the neck. Ms.
Murray got out of her vehicle and began fighting with Mr. Smith. Defendant
exited the Camry and struck Ms. Murray in the back of the head. Ms. Murray
fell to the ground. Defendant pulled Ms. Murray’s head up by her hair and
struck Ms. Murray in the face with her fist several times. Ms. Hurst said that
she noticed that Defendant was wearing brass knuckles on her hand.
Ms. Hurst asked Defendant to stop hitting her mother. Defendant responded,
“Well, she was going to hit my f----g daughter.” Ms. Hurst told Defendant that
Ms. Murray just wanted to talk to Ms. Miller. A woman approached the group
with a baseball bat, and Mr. Smith and Defendant returned to their vehicle, and
Mr. Hardin drove off.
Police officers and emergency personnel arrived at the scene. Ms. Hurst said
that Ms. Murray lost consciousness when Defendant first struck her in the back
of the head but revived before the ambulance arrived. Ms. Hurst said that Ms.
Murray was able to talk, but she was “talking weird stuff.” Ms. Hurst said that
her mother spent a number of hours in the emergency room before being
released.
On cross-examination, Ms. Hurst acknowledged that she and Ms. Miller had
been having problems for a period of time. Ms. Hurst denied that Ms. Miller
knew that Ms. Murray could be violent at times. Ms. Hurst said that Defendant
lived near the fast food restaurant, and Defendant and the others arrived
approximately five minutes after Mr. Smith and Ms. Miller initially drove off.
Ms. Hurst denied striking Mr. Smith first. Ms. Hurst said that she had seen
brass knuckles at Defendant’s house before the incident.
Ms. Murray testified that she, Ms. Hurst, and Ms. Murray’s two nieces arrived
at the fast food restaurant between 6:00 p.m. and 6:30 p.m. on August 25,
2004. Ms. Murray said that she noticed Ms. Miller and Mr. Smith in a blue
Camry in front of her vehicle. Ms. Murray explained that Ms. Hurst and Ms.
Miller had a disagreement earlier that day at school, and Ms. Murray wanted
to tell Ms. Miller that she, Ms. Murray, was glad that the two young women
had resolved their differences. Ms. Murray said that Ms. Miller had lived with
her family for approximately one year, and Ms. Murray treated Ms. Miller like
a daughter. Mr. Smith and Ms. Miller drove off before Ms. Murray could
speak to them.
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Ms. Murray said that the group ordered food and proceeded to the next
window. The blue Camry returned and pulled in next to her vehicle. Mr. Smith
got out of the car “in a rage” and was cursing. Ms. Murray said that Mr. Smith
slapped Ms. Hurst, and Ms. Murray got out of her vehicle to defend her
daughter. Mr. Smith struck Ms. Hurst with his fist, bruising her chin. Ms.
Murray said that Ms. Hurst did not strike Mr. Smith first. Ms. Murray
acknowledged that she and Mr. Smith exchanged blows, and then her next
recollection was waking up in the emergency room.
Ms. Murray said that as a result of the incident, she sustained a fractured
cheekbone, a broken nose, and a concussion on the lower back of her head.
Ms. Murray stayed in the emergency room until approximately 6:30 a.m. Ms.
Murray stated that there were still bone fragments in her cheek, and the doctor
told her that her cheekbone would shatter if she were again struck on that side
of her face. Ms. Murray said that the blows damaged her sinus cavity which
would probably require future surgery. Ms. Murray stated that she did not have
feeling in her teeth caused by the cheekbone fracture and continued to have
trouble chewing on that side of her face. Ms. Murray also continued to have
headaches as a result of the blow to the back of her head. Ms. Murray said that
she no longer liked to have her photograph taken because her lip drooped on
the side of her face where she sustained her injuries. Ms. Murray described the
pain from her injuries as “excruciating.”
On cross-examination, Ms. Murray said that she approached the blue Camry
at a normal walking pace. Ms. Murray said that the blue Camry returned
approximately ten to fifteen minutes later while Ms. Murray was waiting to
pick up her order. Ms. Murray acknowledged that she was angry when she got
out of her vehicle and approached Mr. Smith. Ms. Murray could not remember
which of them struck the other first, but she agreed that she and Mr. Smith
exchanged blows. Ms. Murray stated that she was five feet, three inches tall,
and that Mr. Smith was approximately six feet to six feet, two inches tall. Ms.
Murray said that Mr. Smith struck her in the face approximately two times.
Ms. Murray did not remember Defendant getting out of her vehicle or
approaching Ms. Murray. Ms. Murray said that she did not recollect testifying
at the preliminary hearing that she saw Defendant approach her wearing brass
knuckles. Ms. Murray said that all of the blows from Mr. Smith and Defendant
were directed toward the left side of her face. Ms. Murray denied that Mr.
Smith had stolen something from her prior to the incident or that Ms. Hurst
had harassed Ms. Miller at school.
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The State rested its case-in-chief, and Defendant presented her defense.
Brittany Miller testified that she was ordering food at a fast food restaurant on
August 25, 2004, when she looked in her rear view mirror and saw Ms. Murray
running toward her vehicle with her hand balled into a fist. Ms. Miller said she
was scared because prior to the incident, Ms. Murray had telephoned her house
and threatened her. Ms. Miller also said that Ms. Hurst had previously
attempted to run Ms. Miller’s vehicle off the road. When Ms. Miller told
Defendant and Mr. Hardin about the incident, Mr. Hardin said that he wanted
the conflict to end, so the four of them returned to the fast food restaurant.
When the group arrived at the restaurant, Ms. Miller said that Mr. Smith
jumped out of the vehicle, screaming, and walked up to Ms. Hurst. Ms. Hurst
slapped Mr. Smith, and he returned the blow. Ms. Miller said that Ms. Murray
got out of her vehicle and struck Mr. Smith. Ms. Murray and Mr. Smith
exchanged blows approximately three times, and then Ms. Murray fell to the
ground. Ms. Miller saw Ms. Murray lying on the ground. Ms. Miller said that
Defendant got out of the vehicle and bent over Ms. Murray. Ms. Miller heard
Defendant say, “Just don’t do it, Missy. Don’t do it.” Mr. Hardin got out of the
vehicle and said, “There’s no sense in this.” Mr. Hardin ordered Defendant,
Ms. Miller, and Mr. Smith back into their vehicle, and the group left the fast
food restaurant. Ms. Miller denied that Defendant struck Ms. Murray or that
Defendant had brass knuckles.
On cross-examination, Ms. Miller said that she was driving the Camry when
she and Mr. Smith first arrived at the fast food restaurant, and she
acknowledged that she did not have a driver’s license. Ms. Miller described
various incidents when Ms. Hurst and her friends had driven repeatedly past
Ms. Miller’s house, screaming and throwing things, or called her on the
telephone. Ms. Miller said that Ms. Hurst and her friends had tried to run Ms.
Miller’s car off the road. Ms. Miller said that her parents had called the police
on several occasions to report the incidents.
Ms. Miller reiterated that it was Mr. Hardin’s idea to return to the fast food
restaurant because he wanted “to calm it down.” Mr. Hardin was the only one
who was supposed to get out of the vehicle, but Mr. Smith was angry. Mr.
Smith got out of the car and yelled at Ms. Hurst, “Just leave my girlfriend
alone.” At that point, Ms. Miller stated that Ms. Hurst slapped Mr. Smith. Ms.
Miller said that Mr. Hardin got out of the vehicle when Ms. Murray and Mr.
Smith started fighting and yelled at Mr. Smith and Ms. Murray to stop fighting.
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Ms. Miller said that after the incident, Mr. Hardin drove her and Mr. Smith to
her grandmother’s house, and Defendant and Mr. Hardin returned to their
house. Ms. Miller stated that she called the police from her grandmother’s
house and reported the incident.
Valerie Ridley testified that she was living with Ms. Murray at the time of the
incident. Ms. Ridley said that after the preliminary hearing, Ms. Murray
offered her one hundred dollars if Ms. Ridley would testify that she was with
Ms. Murray on August 25, 2004, and that she saw Defendant wearing brass
knuckles when she struck Ms. Murray. Ms. Ridley said that she was working
that night and refused Ms. Murray’s offer. Ms. Ridley said that she did not
report the incident to the police because she did not want to get Ms. Murray
into trouble. Ms. Ridley stated that she and Ms. Hurst were best friends at the
time of the incident, but the young women were not speaking at the time of the
trial.
On cross-examination, Ms. Ridley said that Ms. Hurst knew she was at work
on August 25, 2004, because Ms. Hurst called her at her place of employment
and told her about the incident. At some point after the incident, Ms. Murray
became angry with Ms. Ridley and made Ms. Ridley leave her house. Ms.
Ridley said that she had known Ms. Miller all of her life and was still friends
with Defendant and Ms. Miller. Ms. Ridley said that she told Ms. Miller about
Ms. Murray’s offer a few months before trial.
The State called Ms. Murray as a rebuttal witness. Ms. Murray testified that
she did not offer Ms. Ridley money in exchange for her testimony at trial. Ms.
Murray said that she knew that Ms. Ridley was not listed on the police report
as a witness and that Ms. Ridley was at work when the incident occurred.
State v. Jackie Hardin, No. E2007-01171-CCA-R3-CD, 2009 WL 1704493, at *1-4 (Tenn.
Crim. App. June 18, 2009).
III. Testimony from the Post-Conviction Hearing
A. Testimony of Jonathan Smith
Jonathan Smith was petitioner’s co-defendant in the trial court. He pled guilty to
aggravated assault and was incarcerated at the time of the hearing on the post-conviction
petition. Mr. Smith was serving a sentence in the Tennessee Department of Correction as
a result of a violation of his probation in this case. He has at least two other felony
convictions in addition to the aggravated assault conviction. According to Mr. Smith,
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petitioner’s trial counsel never contacted him to interview him or to ask him to testify at trial.
Mr. Smith would have testified on petitioner’s behalf if he had been subpoenaed.
Had Mr. Smith been called to testify at trial, he would have testified that he and
Brittany Miller were in the drive-through of McDonald’s when Ms. Hurst came through the
drive-through. Upon seeing Ms. Hurst, Mr. Smith and Ms. Miller left McDonald’s and went
to Ms. Miller’s home. At one point, Mr. Smith said that they left McDonald’s in order to
“avoid the situation.” Mr. Smith then testified that they returned to McDonald’s with
petitioner and her husband John Hardin so they could “settle the situation.” It was Mr.
Smith’s idea to return to McDonald’s. Mr. Smith exited the vehicle because he was angry.
It was not his intention to start a fight, but he was upset. He approached the vehicle, focused
on both the driver and the passenger. Melissa Hurst Murray1 , the driver, exited the vehicle
to defend her daughter, the passenger. Mr. Smith then entered into a physical altercation
with mother and daughter.
Petitioner did not encourage Mr. Smith in the altercation at any time. He heard
someone saying, “Get back in the car!” Mr. Smith did not know whether petitioner exited
the vehicle because it was behind him. He did not witness petitioner strike anyone because
he was focused on the victim. He did not see petitioner strike the victim in the back of the
head, and was relatively sure that she had not done so. He would have been in a position to
see petitioner strike the victim if she had done so. Mr. Smith did not see petitioner strike the
victim in the face with brass knuckles. He did not have brass knuckles, and did not see
anyone else in possession of brass knuckles. According to Mr. Smith’s testimony, he did not
know what the other people who came to McDonald’s with him were doing, but he knew that
no one in front of him was committing any crime. Any allegation that petitioner became
involved in the altercation with Ms. Hurst [Murray] along with Mr. Smith would be false.
B. Testimony of John Hardin
Petitioner’s husband John Hardin was never contacted by petitioner’s attorney before
trial. He would have testified on her behalf, but trial counsel assured petitioner that she had
nothing to worry about. Mr. Hardin would have testified that on the day of the altercation,
Mr. Smith and his daughter Brittany Miller drove up to their home. Ms. Miller was scared
and crying. She stated that Ms. Murray and Ms. Hurst had approached her at McDonald’s
1
This court’s statement of the facts from the trial of State v. Hardin refers to Brittany Hurst as “Ms.
Hurst” and her mother, Melissa Hurst Murray, as “Ms. Murray.” Throughout the testimony from the post-
conviction hearing, the term “Ms. Hurst” is used interchangeably with reference to the two individuals. This
court has attempted to clarify the participants for the reader by noting [Murray] when referencing Melissa
Hurst Murray. Ms. Murray is also referred to as “Missy Hurst” herein.
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and she was afraid. Mr. Hardin intended to go to McDonald’s to ask everyone to put an end
to the arguing. The altercation at McDonald’s was the culmination of a conflict between the
two girls, Brittany Miller and Brittany Hurst, that had begun at school. Mr. Hardin did not
intend to start a fight, but Mr. Smith jumped out of the car and started fighting. Mr. Smith
first approached Brittany Hurst and she slapped him. Mr. Smith hit her. Ms. Hurst’s mother,
Ms. Murray, exited the vehicle to defend her daughter. Mr. Smith hit Ms. Murray and she
hit the ground. Mr. Smith struck Ms. Murray again. Ms. Hardin exited the vehicle, but did
not touch Ms. Murray. Ms. Hardin advised Ms. Murray to stay down so that Mr. Smith
would stop hitting her. Mr. Hardin stated that no one had brass knuckles.
Mr. Hardin stated that petitioner told him repeatedly that trial counsel assured
petitioner that she had nothing to worry about at trial. Mr. Hardin further stated that when
petitioner was convicted on a theory of criminal responsibility, trial counsel considered it a
victory because it was the lowest felony conviction she could have received. Mr. Hardin
never called trial counsel personally. He never spoke to trial counsel when he attended court.
Mr. Hardin never communicated to his wife that her attorney needed to call him.
C. Testimony of Petitioner
According to petitioner, during the year between the time that the court appointed her
attorney until trial, she met with counsel perhaps twice in his office. The remainder of their
meetings were outside of the courtroom. Petitioner and her daughter went to trial counsel’s
office together for the first visit. He wanted to hear petitioner’s side of the story. She did
not recall the content of the second meeting. Trial counsel never talked with Mr. Hardin or
Mr. Smith prior to trial although petitioner told trial counsel that her husband would be
willing to testify. She also advised trial counsel that Mr. Smith was in prison but would
testify. Petitioner’s trial counsel did not indicate whether he had conducted an investigation
of her case. Trial counsel informed petitioner that the State had offered a plea agreement
involving a six-year sentence, but he advised against taking the plea offer. He assured
petitioner that he was a good trial lawyer. Trial counsel did not tell petitioner whether the
six-year sentence would involve jail time or probation. According to petitioner, he also
failed to advise her about the range of punishment she would face, should she be convicted.
Petitioner and her lawyer discussed whether she should testify at trial, and he advised against
it. Petitioner stated that trial counsel made the actual decision about whether she should
testify.
Had petitioner testified on her own behalf at trial, she would have told the jury that
on the day of the altercation, her daughter came home crying and hysterical. Her daughter
told her that while she and Mr. Smith were in the drive-through at McDonald’s, Missy Hurst
[previously referred to as Melissa Hurst Murray] pulled up. Ms. Hurst [Murray] exited her
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vehicle and attempted to assault Ms. Miller through the car window. Upon hearing this,
petitioner, Mr. Hardin, Mr. Smith, and Ms. Miller got into the vehicle and drove to
McDonald’s. Mr. Hardin was going to get out, but Mr. Smith jumped out first.
The passenger door handle on the vehicle was broken, so petitioner could not exit the
vehicle initially. She saw Mr. Smith approach Ms. Hurst’s and Ms. Murray’s vehicle. Mr.
Smith was yelling at Ms. Hurst through the open car window when petitioner witnessed Ms.
Hurst hit Mr. Smith. Mr. Smith struck Ms. Hurst in return. Ms. Murray exited the vehicle
and struck Mr. Smith. Mr. Smith then struck Ms. Murray, knocking her to the ground. Ms.
Murray continued to get up, but Mr. Smith would knock her to the ground again. This
happened two or three times.
At that time, Ms. Miller had opened her door and had opened petitioner’s door from
the outside. Petitioner was urging Ms. Murray to stay down so that Mr. Smith would stop
hitting her and knocking her to the ground. Petitioner never struck Ms. Murray in the back
of the head and never struck Ms. Murray in the face with brass knuckles. Petitioner never
saw anyone with brass knuckles.
At the conclusion of the jury trial and subsequent proceedings in the trial court,
petitioner appealed to this court. When this court issued its ruling, a bonding company called
petitioner to advise her of the adverse ruling. Petitioner then contacted her attorney who
informed her that he had intended to call her. Petitioner’s attorney told petitioner that this
court had reached a decision, but that the opinion would not be released until she was in
custody. Petitioner began her sentence two months later. Petitioner did not speak with her
lawyer again until she went to jail. She entered custody on August 26, but did not speak to
counsel until October. He never informed her verbally nor wrote a letter advising her of the
right to seek second tier appellate review.
In response to the allegations of the post-conviction petition, the State pointed out that
trial counsel was not petitioner’s original counsel. Petitioner’s first attorney, retained by
petitioner, filed a motion to withdraw alleging that petitioner kept missing appointments.
Petitioner contended that he withdrew because they could not afford to pay him the additional
money they owed him. Petitioner failed to appear for the first setting of her trial, for which
the trial court issued a warrant. Petitioner was arrested on the warrant. Petitioner admitted
that she had several arrests for failure to appear in general sessions court. Despite her history
of failing to appear, the trial court allowed petitioner to post an appeal bond and remain free
until this court issued an opinion. When the bonding company called petitioner, an
individual informed her that she needed to turn herself in. Petitioner again failed to appear
and was eventually taken into custody.
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Petitioner acknowledged that she had convictions for theft and fraud and did not know
how many other prior convictions she had from other counties. She was aware from plea
agreements in association with prior cases that the convictions would be used to enhance any
future sentences. Petitioner admitted that even without counsel explicitly informing her that
her prior convictions could be used for enhancement, she knew that she would face an
increased sentence upon conviction in this case. Following the admission, petitioner then
stated that she believed that the prior convictions had to be violent offenses in order to
enhance a sentence.
Petitioner believed that trial counsel failed to investigate her case thoroughly. She
alluded to a video tape from the parking lot of McDonald’s. Petitioner’s first trial counsel
allegedly had possession of the tape, but petitioner did not see the tape again after the
preliminary hearing. She was unaware if counsel ever saw the tape.
Petitioner did not think that trial counsel had engaged in discovery on her behalf. She
stated that she never saw a motion for discovery or the court file. The State pointed out that
the court file contained motions for discovery.
IV. Analysis
Each of petitioner’s alleged grievances involves a claim of ineffective assistance of
counsel.
A post-conviction petitioner bears the burden of proving his or her allegations by clear
and convincing evidence. Tenn. Code Ann. § 40–30–110(f)(2006); Lane v. State, 316 S.W.3d
555, 562 (Tenn. 2010) (citing Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)).
“‘Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” Lane, 316 S.W.3d at 562 (quoting
Grindstaff, 297 S.W.3d at 216).
Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Questions regarding the credibility of witnesses is a matter
entrusted to the trial judge as the trier of fact. Dellinger, 279 S.W.3d at 292 (citing State v.
Odom, 928 S.W.2d 18, 23 (Tenn.1996)). The post-conviction court’s findings of fact carry
the weight of a jury verdict and are conclusive on appeal unless the preponderance of the
evidence is otherwise. Rigger v. State, 341 S.W.3d 299, 306 (Tenn. Crim. App. 2010) (citing
Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631
(Tenn. Crim. App.1997)). However, conclusions of law receive no presumption of correct-
ness on appeal. Rigger, 341 S.W.3d at 306 (citing Fields v. State, 40 S.W.3d 450, 453 (Tenn.
2001)). As a mixed question of law and fact, this court’s review of petitioner’s ineffective
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assistance of counsel claims is de novo with no presumption of correctness. Dellinger, 279
S.W.3d at 294 (citing Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007)).
In order to prevail on her claim of ineffective assistance of counsel, petitioner must
demonstrate both that her lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Finch, 226 S.W.3d at 315; Vaughn v. State, 202 S.W.3d 106, 115
(Tenn. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984), and Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn.1975)). To prove that counsel’s performance was deficient,
petitioner must establish that his attorney’s conduct fell below an objective standard of
“reasonableness under prevailing professional norms.” Finch, 226 S.W.3d at 315 (quoting
Strickland, 466 U.S. at 688). As our supreme court has previously held:
‘[T]he assistance of counsel required under the Sixth Amendment is counsel
reasonably likely to render and rendering reasonably effective assistance. It is
a violation of this standard for defense counsel to deprive a criminal defendant
of a substantial defense by his own ineffectiveness or incompetence . . .
Defense counsel must perform at least as well as a lawyer with ordinary
training and skill in the criminal law and must conscientiously protect his
client’s interest, undeflected by conflicting considerations.’
Baxter, 523 S.W.2d at 934–35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th
Cir.1974)); Finch, 226 S.W.3d at 316. On appellate review of trial counsel’s performance,
this court “must make every effort to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from the
perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006)
(citing Strickland, 466 U.S. at 689); see Finch, 226 S.W.3d at 316.
To establish that petitioner suffered prejudice as a result of counsel’s deficient
performance, petitioner “‘must establish a reasonable probability that but for counsel’s errors
the result of the proceeding would have been different.’” Finch, 226 S.W.3d at 316 (quoting
Vaughn, 202 S.W.3d at 116, and citing Strickland, 466 U.S. at 694). “A ‘reasonable
probability is a probability sufficient to undermine confidence in the outcome.’” Vaughn, 202
S.W.3d at 116 (quoting Strickland, 466 U.S. at 694); see Finch, 226 S.W.3d at 316. As such,
petitioner must establish that her attorney’s deficient performance was of such magnitude
that she was deprived of a fair trial and the reliability of the outcome was called into
question. Id. (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).
Petitioner must establish both deficient performance and prejudice therefrom to be
entitled to post-conviction relief. Id. (citing Howell, 185 S.W.3d at 326). It follows that if
this court holds that either prong is not met, we are not compelled to consider the other
prong. Id. (citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)).
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The post-conviction court made several findings of fact that carry the weight of a jury
verdict on appeal. The court found that many of the allegations of ineffective assistance of
counsel involved the three witnesses who testified at the post-conviction hearing: Jonathan
Smith, John Hardin, and petitioner. The post-conviction court found that Mr. Smith and
petitioner were not credible witnesses because of their extensive criminal histories. The
court further found that Mr. Hardin’s testimony lacked credibility because he is petitioner’s
husband. The post-conviction court also stated that petitioner addressed this issue without
regard to the theory of criminal responsibility for the conduct of another, i.e., Mr. Smith,
under which she was convicted. In recognizing this theory, the court found that Mr. Hardin’s
testimony would have supported the State’s case at trial. Mr. Hardin’s testimony established
that the four individuals traveled to McDonald’s together, at which time Mr. Smith began
striking the victim. Mr. Hardin confirmed that at some point during the altercation, petitioner
exited the vehicle and injected herself into the situation.
The post-conviction court found a factual basis upon which to rule that petitioner
caused the situation whereby she did not receive notice regarding the availability of second
tier appellate review. Petitioner had a history of failing to appear in various courts and failed
to turn herself in upon notification of this court’s adverse ruling. Had petitioner reported to
jail as instructed in a timely manner rather than having to be arrested two months later,
counsel would have been able to communicate her appeal options to her within the prescribed
time period. Petitioner cannot now avail herself of redress through post-conviction
proceedings for an error that she participated in creating.
This court also agrees with the post-conviction court’s conclusion of law pertaining
to petitioner’s second tier appellate review. We conclude that the “fugitive disentitlement
doctrine” is applicable to the facts of this case. See State v. Robert L. Adams, No. M2010-
00916- CCA-R3-CD, 2011 WL 5554385 (Tenn. Crim. App. Nov. 8, 2011); Bradford v. State,
202 S.W.2d 647 (Tenn. 1947). In Bradford, our supreme court held that “‘a defendant who
escapes and becomes a fugitive from justice while his motion for a new trial is pending’ has
‘by his own act . . . waived the right to have his motion for a new trial considered and
determined.’” Robert L. Adams, at *8 (quoting Bradford, 202 S.W.2d at 648). Though the
Bradford court applied the doctrine to a matter involving a motion for new trial, the
principles apply equally to the instant case. The Bradford court opined that “‘the
proceedings [concerning a motion for new trial] are commenced and prosecuted by the
defendant,’ not the State, and consequently the defendant’s act of fleeing the jurisdiction
‘[was] in legal effect an abandonment of the prosecution of his motion.’” Robert L. Adams,
at *9 (quoting Bradford, 202 S.W.2d at 647-49). The same rationale holds true in matters
involving appellate review. The appeal was initiated by petitioner. By willfully violating the
order to report to jail upon notice of an adverse ruling by this court, petitioner abandoned her
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right to second tier appellate review. “As a matter of policy, courts should not ‘give their
time to proceedings which, for their effectiveness, must depend upon the consent of an
escaped convict.’” Robert L. Adams, at *9 (quoting Bradford, 202 S.W.2d.at 648). We agree
that the fugitive disentitlement doctrine “is sound public policy to discourage the absence and
flight of those individuals who disagree with court orders and judgments but still seek
[judicial] relief.” Robert L. Adams, at *9 (quoting Searle v. Juvenile Court for Williamson
County, 188 S.W.3d 547, 551 (Tenn.2006)).
This court has concluded that the evidence does not preponderate against the post-
conviction court’s findings of fact. We credit the court’s findings with the weight of a jury
verdict. Incorporating the post-conviction court’s findings of fact, we further hold petitioner
suffered no prejudice as a result of counsel’s failure to secure the testimony of the witnesses.
The testimony would not have negated, and would only have supported, the theory of
criminal responsibility under which petitioner was convicted. We have also determined that
petitioner suffered no prejudice from the lack of second tier appellate review. Petitioner
raised two issues on appeal: whether the evidence was sufficient to support the jury’s finding
of “serious bodily injury”; and whether the jury verdict form improperly characterized
criminal responsibility for aggravated assault as a lesser-included offense. A panel of this
court issued a prior opinion thoroughly addressing both issues. Having been denied relief
on both issues, this court does not conclude that the outcome would have been different in
the state supreme court.
V. Conclusion
Having thoroughly reviewed the record of the post-conviction proceedings, this court
holds that petitioner has failed to prove by clear and convincing evidence that her counsel
was ineffective.
Accordingly, we affirm the judgment of the post-conviction court denying relief.
_________________________________
ROGER A. PAGE, JUDGE.
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